FC: ICANN director replies: Tell me how to obtain financial info!

[Declan McCullagh <declan () well com>]

Previous messages:

"An ICANN board member's yearlong quest to review financial info"
http://www.politechbot.com/p-02874.html

"ICANN replies to board member's attempts to review financial info"
http://www.politechbot.com/p-02884.html

If ICANN would like to send along what it requires that its directors sign, 
I'd be happy to forward the documents (or any other response).

-Declan

**********

Date: Wed, 5 Dec 2001 15:53:35 -0800 (PST)
From: Karl Auerbach <karl () cavebear com>
To: Declan McCullagh <declan () well com>
cc: <politech () politechbot com>, "M. Stuart Lynn" <lynn () icann org>
Subject: Re: ICANN replies to board member's attempts to review financial
 info
In-Reply-To: <5.1.0.14.0.20011205170335.02612d50 () mail well com>

On Wed, 5 Dec 2001, Declan McCullagh wrote:

> Karl is free to examine ICANN records any time he is ready to comply with
> established procedures that apply to him and any other Director -- in
> complete accordance with California law.

It is my contention that ICANN's requirements are in clear contravention
of California law.  But how can those who are reading this decide whether
that claim is true or not?  ICANN's management has chosen to keep even the
existance of those procedures secret from the public and to hide the full
extent of those procedures from the Directors to whom they purport to
apply.

For instance, I would bet that ICANN's distant directors would be
surprised to learn that ICANN's management demands that they travel across
seas and deserts even to look at ICANN's telephone directory.  And
that Directors who make that journey will find the door barred until they
sign an unseen confidentiality agreement that could contain any
limitations that ICANN's management felt free to impose, even self-serving
clauses designed by management to prevent the board from effectively
overseeing that management's own actions.

These are not simple time and place limitations that ICANN's management is
attempting to impose.  Instead these are limitations designed to eliminate
the accountability of ICANN's management to the Board of Directors.

Those requirements consist of several parts:

  - First there is a formalized procedure, never adopted by the board, but
    simply decreed by corporate management.  (ICANN stonewalled me,
    deferring my access requests for ten months, while it wrote this
    procedure.)

  - Then there are several additional requirements that exist solely in
    e-mails sent to me by ICANN managment and never seen by other members
    of the ICANN board.

  - And finally there is a set of confidentiality agreements that I have
    never seen and yet ICANN's managment demands that I sign them.

I challange ICANN to publish those procedures - *all* of those procedures.

                --karl--

**********

To: declan () well com, gnu () toad com
Subject: Re: FC: ICANN replies to board member's attempts to review 
financial info
Date: Wed, 05 Dec 2001 20:48:40 -0800
From: John Gilmore <gnu () toad com>

Declan, Karl Auerbach is right that California law gives him, as a
company director, an "absolute right" to inspect the premises and
properties and documents of the organization that he's a director of,
at any time.  I am currently a director of at least half a dozen
organizations, have sat on the boards of many others, and take this
right very seriously.  Without it, I would have personal
responsibility for the organization's deeds, without even the
authority to determine what the organization is doing!

Neither the board of the organization, nor its staff, can override
California law by making up some "rules" for when or how directors are
"allowed" to exercise this absolute right.

Besides having many things to hide, though, Stuart Lynn and ICANN also
have the benefit of terrible legal advice, that's been designed to
keep the ICANN organization from ever being accountable to anyone.
'Volunteer' lawyer Joe Sims, who collected big fees once ICANN started
imposing costs on domain owners, set up this uncontrollable monster
even while Jon Postel was alive.  The original theory was to make sure
that billionaire monopolist Network Solutions couldn't sue the "new
IANA" into oblivion before it could turn monopoly into competition.
But the US Government derailed that idea for years -- long enough for
SAIC to sell Network Solutions and head for the hills.  Sims and Lynn
and the (unelected) majority on the ICANN board have seen fit to
perpetuate the same structure -- including ongoing attempts to cut
back the number of elected directors to a minority.  It would look too
bad to eliminate elected directors totally.  But if they can be made a
small minority that loses every vote, and given no individual power to
oversee the organization, then they aren't a threat to the
organization's ability to run its monopoly without public oversight.

        John

**********

[The below should be read from the bottom up. --Declan]

> Date: Wed, 05 Dec 2001 18:25:53 -0500
> From: "Paul Levy" <PLEVY () citizen org>
> To: <dave () farber net>
>
> entirely fair.  I must say, if Auerbach is insisting he has the right to 
> go public with private  corporate information, and that is the only 
> obstacle, he has nothing so far as I can see.  An entity has the right to 
> decide about the privacy of its information.  On the other hand, if there 
> were other restrictions, his best bet would be to call their bluff, agree 
> not to disclose TO THE PUBLIC (as opposed to other board members) without 
> their consent, subject of course to his right to go to court over a 
> particular piece of info, and then see if they still deny him access.
>
> Paul Alan Levy
> Public Citizen Litigation Group
> 1600 - 20th Street, N.W.
> Washington, D.C. 20009
> (202) 588-1000
> http://www.citizen.org/litigation/litigation.html



> >>> David Farber <dave () farber net> 12/05/01 06:03PM >>>
> I will wait for a reply before posting
>
> At 05:43 PM 12/5/2001 -0500, Paul Levy wrote:
> >What ARE the restrictions, other than the confidentiality requirement for
> >personnel records?  I can certainly understand a company not wanting such
> >matters revealed to the general public.
> >
> >Am I correct in assuming that the obligation of "confidentiality" still
> >permits Auerbach to  review information he discovers with other members of
> >the board who are similarly bound to respect the confidentiality
> >requirement?  Or must Auerbach secure clearance before talking to other
> >board members about what he finds?
> >
> >Paul Alan Levy
> >Public Citizen Litigation Group
> >1600 - 20th Street, N.W.
> >Washington, D.C. 20009
> >(202) 588-1000
> >http://www.citizen.org/litigation/litigation.html



Date: Wed, 5 Dec 2001 15:40:09 -0800
To: "Paul Levy" <PLEVY () citizen org>, <dave () farber net>
From: "M. Stuart Lynn" <lynn () icann org>
Subject: Re: IP: Response to Karl Auerbach's note

Dear Paul:
Directors who access confidential ICANN records are of course encouraged to 
discuss them with other directors if they wish, provided that is done in 
such a way that preserves confidentiality.
With regards
Stuart

**********




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